Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan, along with Rich Ford. We’re back after taking some time away, so don’t forget to subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all of our new episodes as soon as they’re available.

So today we’re going to be talking with our colleague, John Donohue, who is one of the nation’s leading experts on, uh, firearms and the law. Um, the latest mass killing in the US happened only a few days ago when a 52-year-old man Uh, is suspected of killing four of his female relatives and seriously injuring a fifth person. And that came only about a month after the shootings in Lewiston, Maine that left 18 dead and 13 wounded and shut down large parts of the state for a while. There have been at least nine mass shootings this year with four or more people dying in the United States, and yet we seem never to get to a point where this carnage is going to end.

Um, John, why is it that the United States has such a huge mass shooting problem?

John Donohue: Yes, it’s a terrible, uh, disgrace I think for the United States that we both have the mass shooting problem and maybe even worse that we seem to not be able to take the steps to address the mass shooting problem. But, uh, there’s little doubt in my mind that one of the biggest contributors to this is the proliferation of the most deadly weaponry available. You know, during the 10 years that there was a federal assault weapon ban which restricted both, you know, AR-15 type weaponry as well as the size of the magazine, we did get a significant, uh, drop in the number of, uh, deaths from mass shootings. And in the wake of the termination of that federal ban in 2004, uh, we’ve been on a very sharp upward trajectory with really no likely end in sight if we continue down the path that we’re currently on.

Karlan: How many guns are we talking about here?

Donohue: Uh, in terms of assault weapons?

Karlan: Yeah.

Donohue: You know, this is the sad part of this story because when the assault weapon ban went into place, the prevalence of assault weapons in the public was, you know, quite a bit more modest than it is now. Uh, right now we’re in the, you know, 20 million area. Always a little bit hard to know because, some of the, uh, assault weapons are purchased in the United States and then are used to, uh, go to places like Mexico to support the drug cartels, etcetera.

But, uh, you know, 20 million is probably a good ballpark estimate of the number of assault weapons and a much greater number of high capacity, uh, magazines are in supply as well.

Rich Ford: So, John, how does the United States compare to other countries in terms of the proliferation of these kind of, um, assault weapons?

Donohue: Well, almost all of our competitor, you know, nations have, uh, been far more restrictive, uh, either outright bans on these weapons. And, you know, after Australia had a 1996 mass shooting that was truly horrific, 12 days later, they went way beyond the United States, not only banning, uh, assault rifles, but all semi automatic rifles that could carry these, uh, high-capacity magazines. And it was not only like the federal assault weapon ban in the United States in that it banned new weapons, but they also did a buyback to get rid of the existing weaponry.

So, other nations, uh, are much more restrictive both in the, uh, controls on the most lethal weaponry, but also much more restrictive on who is allowed to gain access to, uh, you know, weapons in general. Because in the US there’s been such a strong presumption that anyone who wants a gun, uh, should be entitled to get it. And that presumption, uh, is not universal across the developed world.

Karlan: Yeah, we’re going to talk more, um, later about the Supreme Court. But it’s got a case this year in front of it that raises that issue in a particularly dramatic way the Rahimi case. Um, which involves a guy who, um, was under a domestic restraining order, and, uh, while he was under the domestic restraining order, which, among other things, required him not to possess any weapons, he went on several different shooting sprees of a sort.

Donohue: Yeah. I mean, uh, it’s interesting for many years, uh, criminals, when they were arrested for, uh, unlawful possession of weapons would argue that they should, uh, be free from these, uh, prosecutions because they were just exercising their second amendment. And now we have before the Supreme Court, uh, one of these criminals.

Uh, these are the cases that the Supreme Court usually did not take in the past. They preferred to take cases where they would have a very sympathetic, uh, defendant who they, or plaintiff, uh, who they could say was, uh, bringing the lawsuit just to, uh, preserve the constitutional right for law abiding citizens. This individual was anything but a law-abiding citizen, and yet, uh, because the fifth circuit court of appeals has struck down this federal prohibition on people subject to a domestic violence restraining order, his conviction is currently, uh, in abeyance right now. It’s possible that it will be reinstated by the Supreme Court, which heard arguments in this case on November 3rd.

Karlan: I wanted to ask you, you know, there are two different things going on, it seems to me, in the United States that account for why we have so many more guns than, uh, than other folks. One is, um, the Supreme Court, and I want to talk about them a little more in a minute, and their interpretation of the Second Amendment.

But the other is this question of, is there the political will to have gun control in the United States? That is, if the Supreme Court were out of the picture, would we be able to solve the gun problem in the United States? Or is there just a lack of political will?

Donohue: Yeah, it’s a great question. Um, clearly, there’s a problem in the United States. Part of it is, uh, the belief of the public on various issues, which sometimes is very erroneous, but part of it is just the political process. So, for example, we know that something like almost 90 percent of Americans want universal background checks to say that before you can go in and buy a gun, you have to go through some sort of background check.

And even huge percentages of NRA members and Republicans favor universal background checks, and yet you cannot even get a vote in the United States Senate on this issue so there is a breakdown in democracy. Ordinarily one thinks that if 90 percent of Americans want something, uh, they’re going to be able to get it, uh, you know, as long as the Constitution isn’t an impediment. And I don’t think, uh, universal background checks would be found to be unconstitutional.

So, here’s the uh, a problem that I think rests squarely with the political process right now, and essentially the gun lobby has a choke hold on Republican politicians right now. And if there’s anything that the gun lobby doesn’t want, uh, they’re able to stop federal action on that. They’re not able to stop action at the state level. So, states like California and New York, uh, have gotten universal background checks and a number of other, uh, beneficial gun safety measures. But at the federal level, the choke hold is complete. Um, so we can certainly do a lot more and unfortunately the Supreme Court, I think, is moving us rather strenuously in the wrong direction.

So, just to give us a little bit of a sense of that, in 1995 New York State and Texas had roughly equal rates of homicide, and California actually had about a 25 percent higher rate of homicide than Texas. In 1996, the Texas, uh, gun law that had prohibited carrying of guns that had been in place since 1871, so from 1871 to 1995, you weren’t allowed to carry guns for protection in Texas, and they reversed that law and adopted many other sort of extreme, uh, legislation that was proposed by the gun lobby. And now Texas has a 70 percent higher murder rate than New York and a 25 percent higher murder rate than California. So, you got this pretty strong, uh, reversal, uh, and it was all driven, I believe, by these legislative changes at the state level.

So, we know that there’s more that can be done, but unfortunately, the recent, and by that I mean, June 2022 decision of the Supreme Court in Bruen, which struck down the restrictions on gun carrying in the state of New York, are now moving New York and California to be more like Texas. And they’ll get more murders because of it.

Ford: Well, you mentioned the gun lobby, and I remember when the NRA was nowhere near as extreme as it is today. And I’m wondering if you have insights about what’s happened with the gun lobby, not just the NRA, but also gun manufacturers, and incidentally, why don’t we hear more about the gun manufacturers who are presumably pushing some of this legislation?

Donohue: Yeah, yeah, they are very much the drivers of this, and they have the groups like the NRA, but there are other groups that are rising up as well to simply do the bidding of the gun industry. Um, you know, obviously there are different, uh, views on these issues. So, you do have, you know, 20 million people have gone out and, uh, bought assault weapons. So, you do have a sizable number of individuals, but of course, that’s a small percentage of the population. And in fact, I’m sort of exaggerating the number of actual purchasers because so many of the gun purchasers who have assault weapons have, you know, three or four of them. So, while there may be 20 million in the public space, uh, it’s far less than 20 million actual owners of these assault weapons.

But, um, uh, you’re absolutely right, Rich, the gun lobby has changed over time. I mean, way back in the 1930s, when federal gun control legislation was first proposed, um, the NRA was strongly supportive of the gun control measures. And indeed, the president of the NRA who testified said, uh, I have never believed in the promiscuous carrying of guns, uh, and it must be carefully controlled with, uh, you know, strict permitting requirements. Um, and so occasionally I’ll put up a, uh, you know, a graphic showing the quote without identifying it as the former president of the NRA and people who are gun supporters today will say, Oh my God, you know, that must be someone like AOC saying this, you know, some crazy left winger. Um, but indeed, you can look back to statements of Ronald Reagan or Chief Justice Warren Burger. And there really has been quite a seismic shift, not only in the gun lobby, but also among Republican politicians over time who used to be quite supportive of gun control, and now are universally allied with, uh, the gun lobby on trying to have the most expansive reading of the Second Amendment that one could imagine.

Karlan: Yeah, when you referred to the 1930s and then to Warren Burger, and I think it’s worth us kind of explaining for our listeners, just the sea change in constitutional law. Because in the 1930s, The Supreme Court had a Second Amendment case in front of it, it involved a guy with a sawed off shotgun, and the Supreme Court said, look, whatever the Second Amendment means, it’s not about the individual right to carry a weapon, it’s about having a militia.

And then Warren Burger, you know, shortly after he left the Supreme Court, wrote a short piece in Parade magazine saying, you know, that it was just ridiculous to think that people had the right to possess handguns and wave them around and like. And yet, by the time of the Supreme Court’s decision in the DC against Heller case, the court, first of all, recognized an individual right to carry a weapon or to possess a weapon, that was in the home. And then in Bruen, the case that you mentioned, uh, a few minutes ago, which was a case from 2022. The Supreme Court said that in trying to figure out whether a particular gun regulation violates the second amendment or not, you should look at whether it has an analog at the time of the framing. Um, can you explain what the court’s getting at there?

Donohue: Yeah, it has been a long road and you mentioned, uh, the 2008 decision in Heller, which was a 5-4 decision. Um, and, uh, but now after three Trump appointees, a very strongly pro, uh, gun orientation, uh, the court has taken Heller in an even stronger pro Second Amendment direction with the Bruen decision you alluded to.

And what Bruen has done actually has provided a basis for justification for this Fifth Circuit decision in Rahimi, striking down the federal law that prohibits possession of guns by those subject to a domestic violence restraining order. Because as the Fifth Circuit said, there was no analog in 1791 to such a law. And therefore it’s [00:15:30] inconsistent with the text, history, and tradition of the Second Amendment to impose this restriction. And the Fifth Circuit then went ahead and struck it down.

Karlan: I mean, I just want to stop you there for a second and say there’s something so odd about it in two respects. There just seems to be something so odd about that method of reasoning here.

The first thing, is one of the reasons that they didn’t have a rule uh, saying you couldn’t possess a gun if there was a domestic restraining order against you is domestic violence was not something that the courts did anything about in 1789.

And the other thing is, if you think about, like, the First Amendment, the Supreme Court is always saying, well, of course, movies are protected by the First Amendment, even though there were no motion pictures in 1789. The internet, you know, the First Amendment applies in all sorts of ways to the internet, even though the internet wasn’t around. So, it seems so odd that the court would want to freeze how we think about the Second Amendment, uh, as a limitation by looking back to, um, by looking back to 1789. When they don’t do that with regard to anything else.

Donohue: It’s very puzzling. And you are, I think, uh, understating, uh, the degree to which this seems to be aberrational, uh, but also just profoundly unwise. Uh, you know, when one looks back to the founding, uh, in 1791, when the Second Amendment was actually, uh, finally adopted, um, the largest city in the United States was New York City, which had 33,000 people at the time. And today, New York is obviously a massively larger with 8 million. But it has 36,000 police and there were no police departments in 1791 in the United States. Um, and moreover, uh, at the time of the founding, the rationale for the second amendment was that we didn’t want to have a standing army, but we needed to have a way to collectively, uh, defend the country through, uh, well regulated militias, but we no longer rely on well regulated militias to defend the nation from attack. We have a standing army of immense power, uh, with guns supplied by the United States government, rather than by the individual members of a militia. So, the circumstances have changed so dramatically.

And the further point, which I think is really driven home by one of the most horrible mass shootings that occurred in November of 2017, where a young man took an assault rifle and stood outside a church in Sutherland Springs, Texas and fired 254 bullets through the walls of the church from outside the church and killed 26 people. Uh, and no weapon in [00:18:30] 1791 that could be carried around could be possibly as lethal as this assault rifle. Uh, and yet the Supreme Court seems indifferent both to the problem of mass shooting and, um, and just the growing lethality of weaponry overall. Um, so, I do think that, um, the scope for regulation should be profoundly greater than the Supreme Court seems willing to allow, and that’s a troubling prospect for the cases coming down the road.

Ford: John, obviously mass shootings are the most horrific and most visible problem that the proliferation of guns poses for our nation, but there are other problems, right? So, um, what are some of the other things, uh, that we should worry about? Given the large number of guns that are in our society and the Supreme Court jurisprudence, that’s making it fairly difficult to do anything about that.

Donohue: Yeah, its great question, Rich. Um, you know, one thing that I would mention off the right off the bat is, uh, we had 26,000 suicides by guns last year, which was actually more than the 21,000 homicides by gun. So, it’s, you know, a significant concern and the suicide by firearm, uh, numbers have been rising since about 2005. So, it’s very troubling, uh, particularly troubling because of the rise of gun homicides by, you know, late adolescence. And especially with the Supreme Court, uh, or the lower federal courts, uh, engaging in steps to open up access to firearms by those in the 18-to-20-year range. So, there have been a number of restrictions on gun access for those under 21 and certain federal courts have been striking those down. So, I think that that will only exacerbate the problem. Uh, you know, access to guns in general clearly plays a role in the sort of impulsive suicides and most powerfully for young individuals, so this is a big concern.

Um, homicides of course have risen very sharply. You know, we had such a beneficial period, uh, from the peak of homicide in 1992, uh, down to about 2014-15, uh, and since then things have been trending up. Uh, and this is clearly, uh, linked to the growing lethality of weaponry. And one of my, uh, uh, close colleagues is a guy named Phil Cook at, uh, Duke, and, uh, he was involved with a really interesting paper where they got extensive data on 510, uh, firearm homicides in Boston. And they looked through, uh, you know, what explained, um, or or, firearm injuries, uh, you know, assault of injuries. And they looked through what explained who would survive these injuries and who would be killed. And it turned out that, uh, if you were shot by the more modern, uh, powerful weaponry, uh, something like a Glock pistol, as opposed to like the six shooter that John Hinckley used when he tried the assassination of, uh, President Reagan, um, there was a 40 percent higher likelihood of death.

So, we could get a very substantial reduction in homicides simply by suppressing the lethality of the weaponry. And just to follow up on that point, uh, John Hinckley fired every bullet in his gun, which was six bullets, uh, hit four people and none of them died. Today, a similar, uh, you know, assailant would almost certainly have a Glock pistol with, you know, at least 15 bullets in it, and the nature of these crimes is the shooter unloads the entire magazine. So, you not only get many more shots fired, but getting hit by a Glock pistol is dramatically more lethal than getting hit by, uh, you know, the 22-caliber pistol that, uh, John Hinckley was using. So overall, the problem of homicide accidents and suicides are very very linked to the prevalence and lethality of the weaponry.

Ford: And then you also mentioned the younger people, uh, who had now, or have access to these weapons in a way they didn’t in the past. Because I know that suicides, for instance, some people say, well, they would just find another way to commit suicide. But all the evidence that we have around suicide suggests that if people can be prevented when they have that moment of, that impulse to commit suicide, then they very often don’t try again. And so, we could potentially save a lot of lives just by restricting access to guns from that vulnerable age population.

Donohue: Yeah, absolutely. And in fact, I have a paper that I just finished, which looks at the impact of laws that delay immediate access to the weapons. So, for example, California has a 10-day waiting period, and what we find is suicides by young Individuals are, uh, reduced significantly, uh, if [00:24:30] a law in a particular state delays the ability to immediately gain access to a gun. Um, and these laws are very much in peril because, uh, many members of the court who have joined the Bruen majority have said things like, you know, government should not be allowed to, uh, restrain immediate access to weapons by law abiding, responsible citizens, so it’s a concern there as well.

Karlan: Can I ask you about another set of laws that are connected with that, which are laws that require people, for example, to store their guns when they’re in their house, uh, without the bullets in them, or to store the guns where they can’t be reached by their kids or the like. Are those effective?

Donohue: Uh, yeah, they definitely reduce, uh gun accidents for children. Um, but unfortunately, uh, if the more zealous second amendment enthusiasts on the supreme court have the their way, uh those laws will be struck down. You know there’s been litigation over this over the years when the court was a little bit less extreme and those laws have been sustained, but we’re in such a new period, and no one is confident that these laws will survive if the Supreme Court continues down the path that Bruen has [00:26:00] set because, uh, there weren’t these safe storage laws in existence at the time of the, uh, adoption of the First, uh, of the Second Amendment.

Ford: Yeah. John, uh, what about the effect of the proliferation of guns and especially these high capacity, very lethal weapons on police and law enforce?

Donohue: Yeah, it’s a great question. I have another paper, which, uh, was very interesting to me, uh, because what we showed was that when states adopt laws, allowing citizens as a [00:26:30] matter of right to carry guns outside the home, uh, we see that, um, the ability of the police to clear murders or clear all violent crimes for that matter, uh, goes down. And what I take from this is that when lots of people are carrying guns, it changes police behavior in ways that makes them less effective.

Um, and part of that can be that they’re more cautious in the way they approach individuals, um, but also, I think part of it explains why police in the United States kill at like 100 times the rate of police in England or France. And that tends to undermine police community relations in ways that has negative feedbacks for the solving of crime as well. So, the sort of unanticipated consequences of [00:27:30] allowing such broad proliferation of guns is very troubling and adversely affects, uh, policing, and of course, when police are fearful, you know, that tends to lead to bad outcomes.

Ford: I see, so on the one hand, police may be more timid because they’re afraid of being outgunned by criminals and therefore unable to complete their investigations. On the other hand, they, um, in some circumstances may be more aggressive and wind up, uh, shooting innocent people, obviously leading to, uh, terrible tragedies. But also, bad relationships with communities as the type that we are so much more aware of now after Black Lives Matter and some of the, um, activism around that. So, the gun issue may be related in an important way to the issue of, um, police violence in minority communities and bad relations between police and those communities.

Donohue: Yeah, I think that’s exactly right.

Ford: Thanks to John Donohue, our colleague. This is Stanford Legal. If you’re enjoying the show, tell a friend and please leave us a rating or review on your favorite podcast app. It will help us improve the show and get the word out that we’re back. I’m Rich Ford with Pam Karlan. See you next time.